The Owners Strata Plan No 81312 v Ku-ring-gai Council [2018] NSWLEC 1048

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners Strata Plan No 81312 v Ku-ring-gai Council [2018] NSWLEC 1048 Hearing dates: Conciliation conference on 12 January 2018 Date of orders: 01 February 2018 Decision date: 01 February 2018 Jurisdiction: Class 2 Before: Gray C Decision: See (4) below Catchwords: APPEAL - order under the Swimming Pools Act 1992 - conciliation conference - agreement between the parties - orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: The Owners Strata Plan No 81312 (Applicant) Ku-ring-gai Council (Respondent) Representation: Ms Thomson, Chairman, The Owners Strata Plan No 81312 (Applicant)

Solicitor: Mr Clarke, Hones Lawyers(Respondent) File Number(s): 2017/273775 Publication restriction: No

Judgment 1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to "dispose of the proceedings in accordance with the decision". 2. The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The orders made to give effect to the agreement constitute that document. 3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. 4. The final orders to give effect to the parties' agreement under s34(3) of the Land and Environment Court Act 1979 are: 1. The appeal is upheld. 2. Schedule 2 of the Respondent's Direction to Comply issued pursuant to s 23 of the Swimming Pools Act 1992 dated 11 August 2017 (ref. SPA0146/17, herein 'Direction') is amended as follows: 1. Within 90 days of the date of these Orders, the Applicant is to procure the carrying out and completion of the following works: The western door (as indicated in red clouding on the plan annexed to these orders and marked "A") is to be rendered permanently inoperable. A compliant pool barrier is to be erected between the pool and the eastern door in a manner agreed between the parties after consultation with the applicable swimming pool fencing companies and as signed off by the Respondent prior to construction, and in compliance with the Swimming Pools Act 1992, the Swimming Pools Regulation 2008 and relevant Australian Standard. ………………………. Commissioner Gray Annexure A (377 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2018